How the law could save the planet

Can the law save the planet? Ten days ago, on Threatened Species Day, Education Minister (and ex-planning minister) Rob Stokes won a special achievers' award for Outstanding Merit in Habitat Destruction. His "success" was to bulldoze 3.65 hectares of bushland, home to five threatened species including the red-crowned toadlet, the powerful owl and the very rare, walnut-sized eastern pygmy possum.

The bush was cleared for an "asset protection zone" to let the local Manly Vale public school double in size and shift further into the bush. The idea is to give the 1000 pupils of this newly amalgamated $50 million "super-school" a closer understanding of nature. But of course the irony is blinding. If loving nature routinely means degrading it, there'll be no nature to love.

"There's no law against extinction," points out Sue Higginson, chief executive officer and chief solicitor of the NSW Environmental Defenders Office. "It could be illegal, but it isn't." For me, this is a lightbulb moment.

I suddenly see that both Higginson and James Thornton, the American rock-star eco-lawyer who spoke at the Opera House recently, are right. The fight to save the planet will turn on law, as much as politics, and in that fight – as in the fight to make decent cities – the best laws place the simplest possible protections around what we value most.

Illustration: Simon Bosch

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Globally, Australia sits in the top five for extinction – not least because, on official figures, we've already cleared more than 90 per cent of our eastern temperate bushland. We could ban it. We could say, any action that knowingly contributes to extinction is illegal, period.

But we don't. Instead, we make new laws to ease land clearing. We pretend that using "offsets" to legitimise habitat destruction will protect biodiversity. With hypocrisy unusual even among governments we call the enabling legislationthe Environmental Protection and Biodiversity Conservation Act, when it is designed to do the opposite. We offer industry "Environment Protection Licenses" that are actually just licenses to pollute.

In short, we see environmental law, like planning law, as a slipway for development, not a safe-house for our most treasured assets. This needs to change.

Law is the framework and guarantor of civilisation. But its capacity to drag us from the swamp is only as great as our determination to wield it for the long-term good of the many, not the short-term greed of the few. Increasingly, our system of "justice" seems glacial, exorbitant and remote, an uncertain mechanism massively rigged to favour the big guys. In a word, hugely unfair.

'There's no law against extinction. It could be illegal, but it isn't': Sue Higginson, CEO of the NSW Environmental Defenders Office.

Photo: Nic Walker

It is also a profession that thousands leave, and thousands more want to, since it draws our brightest and most starry-eyed then shows them a single, grim path to success; making the rich richer. This is an unpardonable destruction of souls and minds as well as social trust.

Mainstream law likes to regard planning and environmental law as somewhat declasse, but Higginson and Thornton stand in brilliant contradiction to this snobbery. Both, despite decades at the coal face, are, more passionate, more driven, more riveting than ever. Why? Because they are fired by purpose, using their formidable intellects to fashion the rule of law into a protective carapace for planet earth. And they're winning.

New Zealand courts have made the Whanganui River a legal person.

Photo: Fairfax NZ

Thornton's firm is called Client Earth. But wait? Does the earth have rights? Should it? This idea, once as preposterous as the thought that women or black people had rights, is increasingly plausible. In March, New Zealand courts made the Whanganui River a legal person, all rights attaching. Five days later, the Ganges followed in becoming, literally, personified. Perhaps, if Australia was serious about respecting Indigenous connection to country, the same would happen here.

In fact, this kind of rights-based approach is not what Thornton advocates. He's a Zen priest, yes, but also an energetic litigator, and his tools are emphatically legal. If Earth is your client, science is your brief. Science is the earth's lexicon and its syntax, so that is always where you start. Understand the science. Formulate policy. Advocate, negotiate, mediate. That's the prep. Only at the exuberant end of the process do you get, in the eco-lawyer's joyous, haka-like war-cry, to "sue the bastards!"

James Thornton outside Britain's High Court after successfully pushing for the government to release its plans to tackle city air pollution.

Higginson also insists on starting with science. "I am lawyer and my currency is evidence." Personifying nature may be useful philosophically, she says, but in legal terms it is problematic, since "rights discourse is failing us as a society drastically in every way ...[and] not delivering justice". An obvious example is the government's relentless determination to approve the Adani mine in the Galilee Basin despite its mammoth destruction of Native Title lands.

The Environmental Defenders Office won an important case on behalf of the residents of Bulga against Rio Tinto's coalmine extension.

Photo: Nick Moir

The government, far from apologising, went on the attack, coining the "green lawfare" terminology that enabled them to cast groups fighting to uphold the law of the land as outlaw "environmental vigilantes".

It re-approved the mine and attempted to remove rights to third party "standing". But the EDO keeps fighting.

The EDO could only do this because, a couple of years earlier, it won for a Bulga community group against Rio Tinto's coalmine extension. Let me explain...

The win incensed the lobbyists. The Australian Coal Council petitioned the premier O'Farrell to condition all EDO funding on its not pursuing "merit appeals in the Land and Environment Court". The Minerals Council, accusing the EDO of conducting "a deliberate campaign of economic sabotage against... our most valuable export commodity", sought its complete and immediate defunding.

This forced the EDO to secure independent funding, crowdsourcing its future. While the federal government failed to outlaw standing,NSW's creation of the Planning and Assessment Commission effectively extinguished third-party appeals regardless.

But the EDO lives, stronger, smarter, more energised than ever. So Goliath one, David one. But David's sword is pointier, flaming and Damocletian.

Elizabeth Farrelly is a Sydney-based columnist and author who holds a PhD in architecture and several international writing awards. A former editor and Sydney City Councilor, she is also Associate Professor (Practice) at the Australian Graduate School of Urbanism at UNSW. Her books include 'Glenn Murcutt: Three Houses’, 'Blubberland; the dangers of happiness’ and ‘Caro Was Here’, crime fiction for children (2014).